Misrule of Law

S.B. 2775, and the nullification doctrine in general, are fringe concoctions that the Tennessee General Assembly should summarily reject. At the recent “summer study” hearing, the bill’s author, Jeff Cobble, showed where this path leads. A statue of President Andrew Jackson stands outside the State Capitol. He would be appalled that the General Assembly is even considering the rhetoric of his nemesis, John Calhoun.

Thanks to the Tennessean (here), the Knoxville News-Sentinel (here), Tennessee Conservative News (here), and The Pamphleteer (here)!

On October 3, 2024, Greeneville attorney Jeff Cobble, the self-styled constitutional “expert” who drafted S.B. 2775, the controversial bill that would authorize the state of Tennessee to unilaterally nullify federal actions that state officials found “unconstitutional,” testified before the State Senate’s State and Local Government Committee. The Committee was holding a “summer study” hearing on S.B. 2775, after having previously tabled identical bills in two prior legislative sessions without taking action. Unfortunately, news coverage of the hearing was sparse, limited to a sketchy “alternative newsweekly” based in Memphis, the Memphis Flyer.

Cobble told the Committee that “everything he learned about the Constitution in law school” was wrong. He concluded, based on his own study of the document, that virtually everything the Supreme Court has done since ratification of the Constitution, including judicial review itself, is a “quagmire of nonsense.” Under Cobble’s crabbed interpretation of Article I, Section 8, the federal government had no authority to create the interstate highway system, Social Security, Medicare, and many other programs Americans take for granted. In Cobble’s world, the entire agenda of the 20^th century—the Progressive movement, the New Deal, the Great Society, etc.—are unconstitutional. Ultra vires, null and void.  

His goal is to turn back the clock to the early 1800s, and start over. There would be no administrative agencies (goodbye, VA, FDA, TVA, FHA, OSHA, etc.), no welfare state, no national parks, no federal student loans, no child labor laws, and much more. Over 200 years of constitutional caselaw from the U.S. Supreme Court, going back to Marbury v. Madison in 1803 and McCulloch v. Maryland in 1819, should be erased as an “illegal usurpation,” in Cobble’s view. Cobble’s radical proposed S.B. 2775 would direct state officials to consider the constitutionality of federal actions by ignoring all decisions of the U.S. Supreme Court except for “the opinions of the first chief justice,” John Jay, who served from 1789 to 1795. S.B. 2775, Section 5(5).  

In Cobble’s view, which is eerily similar to the position of South Carolina’s John Calhoun in the 1832-33 Nullification Crisis (which ended due to the decisive action of President Andrew Jackson), and the secessionists themselves, the states are independent sovereign entities superior to the inferior federal government –never mind the Supremacy Clause in Article VI of the Constitution. Cobble teaches this fantastical theory of the Constitution to gullible grassroots activists in Tennessee, some of whom attended the hearing on October 3.

This daft nonsense is outside of the mainstream of any serious academic thought. Only Cobble, the far-right John Birch Society, and a handful of  neo-confederates embrace these wacky notions. I pointed this out in my testimony, which is reproduced below (more or less as delivered).

At yesterday’s hearing, in response to a question by Sen. Jeff Yarbro, Cobble stated that FEMA is “clearly unconstitutional.” This, while many Tennesseans struggle to deal with the destruction of Hurricane Helene! The colloquy was covered by the Memphis Flyer:

Some spice in the meeting came late as state Sen. Jeff Yarbro (D-Nashville) began asking questions of the panel. He asked if the work of the Federal Emergency Management Agency (FEMA) helping out now in East Tennessee was an example of what they were taking about.

Yes, Cobble said, “It’s usurpation, whether it’s used for good or bad,” adding that communities come together in times of tragedy, noting specifically that “the Amish, they build their own barns. They raise their owns houses.”

“You know, good things can happen without a government,” he said. “So, my answer is yes, FEMA is clearly unconstitutional.”

Should the Tennessee General Assembly nullify FEMA and leave distressed residents of Erwin and other ruined communities to fend for themselves, like the Amish? Disaster assistance is a “usurpation”? I hope this convinces the members of the Senate State and Local Government Committee to torpedo this fringe bill once and for all.

Here is my testimony:

Good afternoon. My name is Mark Pulliam. I am a lawyer and writer living in Blount County. I am here today to share my views on Senate Bill 2775 and on the topic of nullification in general. Thank you for the opportunity to speak to this committee.

I am opposed to S.B. 2775 and the theory of nullification, for the reasons explained in four articles that I wrote beginning in 2021, links to which I have provided to your committee’s analyst. (I wrote the first article before I had even heard of S.B. 2775.) I will summarize my objections shortly, but first I want to provide you with some background information.

I attended the University of Texas Law School, where I graduated Order of the Coif and was an editor of the law review. I clerked for Judge Walter Ely on the U.S. Court of Appeals for the Ninth Circuit, and then practiced for 30 years with the firm Latham & Watkins, where I was recognized as one of the “Best Lawyers in America.” I have written several scholarly articles in law reviews and other publications, as well as many articles in newspapers, magazines, and digital platforms, including the Wall Street Journal, National Review, The Federalist, The American Conservative, Chronicles, City Journal, Modern Age, and my blog, Misrule of Law.

For 10 years I have been a contributing editor to Law & Liberty. When I lived in San Diego, I was President of the Federalist Society’s Lawyers Chapter there. Since moving to Tennessee, I have appeared on Life, Liberty & Levin and Fox & Friends.

During the U.S. Senate’s confirmation hearing for Brett Kavanaugh in 2018, the Chairman of the  Judiciary Committee, Senator Charles Grassley, quoted from an article I wrote in the Wall Street Journal in his opening remarks.

I consider myself a lifelong constitutional conservative, and for decades have spoken and written widely on legal topics. I have appeared frequently in the Tennessee Conservative News and on Michael Patrick Leahy’s radio show. I have even appeared on a podcast with Gary Humble of Tennessee Stands. I am a mainstream conservative who normally agrees with grassroots activists. In my community, I am a grassroots activist. Mr. Cobble, whom I have debated on the subject of nullification, has described me as “a ‘conservative warrior’ on a variety of topics.”

I bring this up because it has been suggested in some circles that opponents of S.B. 2775 (or of nullification generally) are not “real” conservatives, and are even “RINOs.” I strongly disagree with this assessment. In my estimation, true conservatives are devoted to the rule of law, and S.B. 2775 is plainly unconstitutional, as our fine Attorney General, Jonathan Skrmetti, opined earlier this year. I agree wholeheartedly with General Skrmetti. Acknowledging and following controlling Supreme Court precedents does not constitute “worshipping at the altar of judicial supremacy,” as some supporters of S.B. 2775 contend; it is respecting (and obeying) the law.

I wish to make five brief points:

1. The theory of nullification has been rejected by the U.S. Supreme Court more emphatically than any other ruling it has issued in its history. The 1958 decision in Cooper v. Aaron was not only unanimous, it is the only ruling in Supreme Court history signed by all nine justices. Responding to the defiance of the state of Arkansas to federal court orders regarding desegregation of Arkansas schools, the Justices wanted to make their point unmistakably clear–and did: States do not have the authority to unilaterally disregard federal law. As a matter of constitutional law, Cooper v. Aaron is the end of the argument, period. Like it or not, Cooper v. Aaron is the silver stake through the heart of nullification. If S.B. 2775 were enacted, it would surely be struck down as unconstitutional, and—in my opinion—reflect poorly on the Tennessee General Assembly in the process. If anything, General Skrmetti’s well-reasoned opinion was understated in this regard. 
2. The Court’s rejection of nullification in Cooper v. Aaron was consistent with over 200 years of caselaw regarding judicial review, the Supremacy Clause (Art. VI), and the role of the states. Nullification was not discussed during the Constitutional Convention in 1787, is not mentioned in the Constitution, was not raised in the pro-ratification Federalist Papers, and has been rejected at various times during our history—prior to Cooper v. Aaron—including the showdown in 1832-33 between President Andrew Jackson and South Carolina’s John Calhoun in the so-called Nullification Crisis. As a matter of history and law, few issues are as well-settled as this.
3. Many respected scholars—on the right and left–have rejected the theory of nullification. These include David Barton, Mark Levin, Rob Natelson, John Eastman, Randy Barnett, Lucas Powe, Carson Holloway, the Cato Institute, the Heritage Foundation, Americans for Limited Government, the Convention of States,  and others. Even The New American, published by the John Birch Society, has conceded that “In today’s American history books, nullification is treated as a fringe idea at best, and treasonous at worst.” Steve Byas, “State Nullification: An Idea Deeply Embedded in American History,” 4/19/21. This is an accurate characterization. Nullification is a fringe position, as even Mr. Wolverton’s employer acknowledges. Dave Vance, co-founder of the pro-nullification TN Citizens for State Sovereignty, concedes that nullification “is by far the minority position.” This is undoubtedly true, with the emphasis on “by far.”
4. Nullification is not only unconstitutional; it is also bad public policy. If other states adopted it, chaos would ensue. Blue states could nullify federal actions they disagree with. The Union would be replaced by a confederation of quarrelling states. The Framers adopted the Constitution precisely to replace such a dysfunctional arrangement under the Articles of Confederation.
5. Even if nullification were a sound theory—which it is not—S.B. 2775 is a poorly-drafted vehicle. The power to nullify is not limited to the legislative branch. The Governor could unilaterally nullify federal actions by executive order. Tennessee’s state court judges—trial and appellate—would be authorized to disregard federal precedents they found “unconstitutional,” producing a Tower of Babel in the judiciary. Stare decisis would go out the window.  Different judges across the state, presented with the same issue, could reach contrary—even contradictory—results. This is not consistent with the separation of powers, equality under the law, or sound constitutional government. It is a prescription for anarchy.

These points are developed at greater length and in greater detail in my articles.

Proponents of nullification ultimately rest their case on a far-fetched interpretation of the Supremacy Clause that would allow the states—instead of the federal courts—to decide whether particular federal laws, regulations, or executive actions were made in “pursuance” of the Constitution. This is a clumsy attempt to end-run around the Supremacy Clause and 200 years of Supreme Court caselaw. The Supreme Court has never embraced this untenable interpretation. And never will.

Having said all this, I must register my agreement with grassroots activists that the federal Leviathan needs to be tamed. The question is how. Reform is a job for elections, federal court litigation (at which General Skrmetti’s office is quite adept), future Supreme Court appointments, and possibly constitutional amendments pursuant to Art. V. 

Moreover, there are different “flavors” of nullification, not all of which are objectionable. Protesting objectionable federal laws is perfectly legitimate. Ditto public criticism, and even organized opposition (interposition) among the states. Ditto refusing to cooperate with the federal government regarding enforcement of objectionable laws. Ditto refusing to provide funds or other resources (including manpower) to enforce objectionable laws. What states cannot do—and this is the only true form of “nullification”—is to unilaterally declare federal laws to be unconstitutional and then to refuse to comply with them or interfere with the federal government’s enforcement of them.  S.B. 2775 would authorize all of the foregoing actions.

Let me leave you with some quotes from other authorities:

As Justice Joseph Story, a noted constitutional scholar, wrote in 1840, without the judicial power created in Article III, “the laws of the Union would be perpetually in danger of being contravened by the laws of the States. The National Government would be reduced to a servile dependency upon the latter for the due execution of its powers.” Regarding the Supremacy Clause, Story had this to say: Allowing states to second guess the validity of federal laws “would be a solecism, so mischievous, and so indefensible, that the scheme could never be attributed to the framers of the Constitution, without manifestly impeaching their wisdom, as well as their good faith.”  Indeed, it would reduce the national government to “an idle mockery.”

Andrew Jackson’s proclamation on nullification: “I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object far which it was formed.” Giving states “an uncontrolled right to decide” whether federal laws are constitutional is an “absurd and dangerous doctrine.” “The laws of the United States must be executed. I have no discretionary power on the subject; my duty is emphatically pronounced in the Constitution. Those who told you that you might peaceably prevent their execution deceived you; they could not have been deceived themselves. They know that a forcible opposition could alone prevent the execution of the laws, and they know that such opposition must be repelled. Their object is disunion. But be not deceived by names. Disunion by armed force is treason. Are you really ready to incur its guilt?”

Georgetown law professor Randy Barnett has said, “Political activists should not waste their precious energies on sketchy constitutional theories such as the assertion of a state power to nullify unconstitutional laws that, for better or worse, have long been rejected by the Supreme Court–as Wisconsin’s was in Ableman v. Booth–that five justices certainly would not today support, and that rest on dubious claims about original meaning.”

President Trump’s lawyer, John Eastman, is equally emphatic: “Quite simply, although the states retain a residuum of sovereign power, they did not create the national government and therefore have no authority to nullify its enactments. The first three words of the Constitution are, after all, ‘We the People,’ not ‘We the States.’”

Historian David Barton had this to say: “Nullification is the hallmark of selfishness and anarchy; and selfishness and anarchy, whether by citizens or states, is not a cherished American virtue. To the contrary, a characteristic of America’s greatness has been an unwavering dedication not only to follow the rule of law but also to expend as much time and energy necessary, no matter how long it takes, to make needed changes through the constitutional process, whether by the use of courts or through elections….Nullification places minority power above majority power. The majority may sometimes be wrong, but when that occurs, Washington reminded Americans that changes must be made only by using “the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”  Very simply, don’t try to fix the Constitution by breaking it; fix the Constitution through the means it provides, and nullification is not that means. Nullification is a dangerous anarchic maldoctrine, cancerous and toxic to the health and vigor of a constitutional republic.”

Conclusion

As Benjamin Franklin said following the Constitutional Convention in Philadelphia, the Founding Fathers created a republic, “if we can keep it.” E Pluribus Unum is our national motto: “Out of many, one.” Nullification is secession-lite. Constitutional conservatives should not be embracing such reckless rhetoric.

The General Assembly tabled the predecessors to S.B. 2775 in two prior legislative sessions. Now, with the benefit of General Skrmetti’s legal opinion, I suggest that this committee deliver to S.B. 2775 the same fate. Tennessee should not adopt as legislation a chimerical notion that even its proponents concede is a “fringe” position “at best,” and “by far the minority position.” S.B. 2775 is an exercise in make-believe, or perhaps wishful thinking. The great Tennessean Andrew Jackson was right to reject nullification when it reared its head in 1832.

Your time, and that of the grassroots activists who support this ill-conceived and misguided bill, could be put to better use elsewhere. We have a critically-important election on November 5. Now is not the time for patriots to give up on electoral politics. Self-government requires hard work, patience, and mindful discernment.

Thank you.